Page:The Green Bag (1889–1914), Volume 19.pdf/372

 TRIAL BY JURY IN CIVIL ACTIONS

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The Washington case is a sample.1 The for the trial court to decline to set aside a verdict though he is not satisfied with it.1 trial court is reported thus: "I am compelled, though reluctantly, to As the Massachusetts, Ohio, and Federal deny the motion for a new trial in this case. cases cited specially point out, if a judge My reluctance arises from the fact that, in always sets aside a verdict that he would my opinion, the weight of the evidence did not have found as a juror, he is infringing not sustain the contention that excessive on the province of the jury! Such de force was used in ejecting the plaintiff from cisions, of course, leave it a little uncertain the train; but that issue was submitted to whose duty it is to decide on the facts. the jury, and was decided in favor of the Nor is there any greater unanimity among plaintiff, and as, under our judicial system, the courts which allow a trial court to set the trial judge in a civil case has little more aside a verdict, whenever it takes a different power or authority than a ' mentor at a town view of the facts, as to just what the question meeting,' I am not at liberty to disturb the is that is presented to the appellate court. jury's finding on that issue." It is frequently not quite clear whether the On this the supreme court says : reviewing court addresses itself to the "It appears from the foregoing statement question, Was the conclusion of the jury that the trial court labored under an entire the one that, in fact, ought to have been misapprehension as to its powers and duties. drawn from the evidence? Or, to the Our statute provides that a new trial may "very different question," 3 Was the evidence be granted, among other grounds, for in such that the trial judge could, as a reason sufficiency of the evidence to justify the able man, draw from it his opposite conclu verdict; and this power must be exercised sion? Generally, perhaps, they say, on practical by the trial courts, if at all. These courts should take care not to invade the legitimate grounds, that they are in no position to province of the jury, but if, after giving full weigh evidence, and they will not reverse consideration to the testimony in the light the trial judge for granting or refusing a new trial, if there is any evidence to sus of the verdict, the trial judge is still satis fied that the verdict is against the weight tain his ruling. " It is the constant practice of the evidence, and that substantial justice of the courts to refuse to disturb an order has not been done between the parties, it is granting a new trial even where it would have done the same thing had a new trial his duty to set the verdict aside." The upshot of the decisions along this been denied. " 3 This practically makes the statutory line, of which those just cited are merely examples, is that a trial judge may set aside ground for a new trial mean one thing in the a verdict on the facts alone whenever he trial court, and something else in the review deems it expedient. But the appropriate ing court. legal phraseology for expressing this result 1 Daley v. R. R. Co.. 26 Conn. 591 ('58); R. R. is by no means settled. Even the cases Co. v. Matthews, 58 Kan. 447 ('97); Reeve v. that agree in holding that he has the power, Dennett, 137 Mass. 315 ('84); Rohde v. Biggs, do not agree as to whether he is required 108 Mich. 446 C96); Wendell v. Safford, 12 N. H. 171 ('41); Dickerson v. Payne. 66 N. J. L. 35 ('02); to set aside a verdict when he differs with McCord v. R. R. Co., 134 N. C. 53 ('03); Fleming the jury. It is quite as easy to collect v. Smith, 44 Barb. 554 ('65); French v. Millard, citations to the effect that it is not error 2 O. St. at 53 ('53); Daveyti. Aetna L. I. Co., 20 Fed. 494 C84). ' Cf. Capital and Counties Bank v. Henty, 7 Dinan v. Supreme Council, etc., 213 Pa. 489 ('06); Clark v. Ry. Co., 37 Wash. 537 ('05); Felton v. App. Cas. at 776 ('82); Bishop v. Perkins, 19 Conn. Spiro, 78 Fed. 576 ('97). 300 C48). 3 Ruffner v. Hill, 31 W. Va. 428 ('88). 1 Clark v. Ry. Co., 37 Wash. 537 ('05).